The European directive on transparent and predictable employment conditions must be implemented in the Netherlands by 1 August 2022 at the latest. The first version of the Dutch bill was submitted to the House of Representatives on November 11, 2021. With the introduction of this law, employees will receive a number of new rights, including in the field of training, working hours and ancillary activities. We explain the most important ones below.
Compulsory training and costs
Under current legislation, employers are already obliged to enable employees to follow training that is necessary for the performance of the job. Even if an employee’s position lapses, or an employee can no longer perform the position, the employee must be enabled to follow training, but only if this can be reasonably required of the employer.
This training obligation is expanded in the bill: if an employee is obliged to follow certain training in order to perform the job, the employer must offer this training free of charge and – if possible – during working hours. This means that all costs that the employee has to incur in connection with the training (course fees, travel costs, exam fees, material costs, etc.) are mandatory for the employer’s account. The fact that the employer is obliged to bear these costs also means that a study costs clause for compulsory training will no longer be valid. In addition, the training time will be regarded as working time.
There is ‘mandatory’ training if the employer is obliged to offer the training on the basis of the law, for example for employees of trust offices, or on the basis of a collective labor agreement. This usually concerns training in the field of safety, working conditions and updating professional competence.
Vocational training or training that employees are obliged to follow in order to obtain, maintain or renew a professional qualification do not, in principle, fall under the concept of ‘compulsory training’. This concerns training for so-called “regulated professions”. These professions are included in a special package . This includes, for example, crane operators, expert asbestos removers, sworn interpreters and physiotherapists. With regard to training for these professions, (re)payment agreements can therefore still be made, unless the employer is obliged by law or a collective labor agreement to offer the training.
Ancillary
Many employment contracts contain a so-called ancillary activities clause, which prohibits employees from performing other activities during their employment. Currently, this clause is not regulated by law. This is about to change: from 1 August 2022, an ancillary activities clause is in principle no longer allowed, unless the clause can be justified on the basis of an “objective reason”. A ground for justification is, for example, the protection of confidentiality of company information, the avoidance of conflicts of interest, but also if the performance of ancillary activities can lead to a violation of the working time legislation.
The objective reason does not have to be included in the employment contract itself; this can also be given at a later time, for example if the employer invokes the clause. If an employee does not agree with the objective reason, the employee can start proceedings in court.
Existing employment contracts often state that an employee may not perform ancillary activities, unless the employer gives (written) permission for this. With the entry into force of the bill, this clause may remain in the employment contract, but permission may therefore only be withheld if there is an objective reason. We expect that this will lead to more discussion if the employer refuses permission.
Unpredictable working hours
From 1 August 2022, an employer must inform employees who have wholly or largely unpredictable working hours, at the start of the employment contract, about the days and hours on which the employee can be obliged to work (so-called reference days and hours) , the minimum period for convocation and the number of guaranteed paid hours. “Unpredictable working hours” occurs when most of the working time is not known in advance and the times are largely determined by the employer. An employee may refuse work if it falls outside the agreed reference days and hours and if the employer has not made the request at least four days before the start of the work.
If an employee has been employed for at least 26 weeks, the employee may request (once a year) for more predictable and secure working conditions. The employer must respond to this – in writing and with reasons – within one month. for small employees (<10 employees) a response period of three months applies. If there is not enough work available, the employer may reject the request with reasons. If an employer does not respond in time, the work will be adjusted in accordance with the request. If the employer responds in time, but rejects the request, the employee can challenge this in court.
Information
obligation Employers are already obliged to provide certain information to the employee in writing or electronically. For example, about the place where the work must be performed, the duration of the employment contract, the usual working hours per week and (payment of) wages. This information is often included in the employment contract or an accompanying handbook. With the introduction of the bill, the information that an employer must provide will be considerably expanded. Among other things, an employer must provide information about reference days and hours in the event of unpredictable working hours, vacation (leave), applicable notice periods, formal requirements for notice of termination and the period within which an employee can contest the dismissal.
If a collective agreement applies, the information may also be provided by referring to the collective agreement.
Completion
The bill has now been submitted to the House of Representatives and the Act is expected to come into force on 1 August 2022. The Act will have immediate effect, with the result that, among other things, study costs and ancillary activities clauses can be immediately null and void. It is therefore wise to review current agreements and take the upcoming legislative changes into account when drafting new employment contracts or study plans.
For further information, please contact:
Ron Andriessen, Partner
Labré lawyers, Amsterdam
e: ln.erbal@nesseirdna.nor
t: +31 20 3052030
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